Nong (Migration)

[2020] AATA 5444

Nong (Migration) [2020] AATA 5444 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Weiwei Nong
Mrs Wanxia Chen
Miss Jinyu Nong

CASE NUMBER:  1806057

HOME AFFAIRS REFERENCE(S):          BCC2017/3412785

MEMBER:Terrence Baxter

DATE:4 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 November 2020 at 2:19pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Computer Network and Systems Engineer – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

CASES

MIMIA v VSAF of 2003 [2005] FCAFC 73    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 September 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Computer Network and Systems Engineer for Willskey Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 20 January 2018 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required. The Tribunal notes that the nomination was refused on 20 February 2018 and not on 20 January 2018 as stated by the delegate in the decision.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 7 March 2018.

8. The applicant appeared before the Tribunal by audio conference on 12 August 2020 to give evidence and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio conference.

10. The applicants were represented in relation to the review by a registered migration agent until 27 July 2020. On that day, the applicants withdrew their previous authorisation of a person to act as their representative and appointed the applicant as their Tribunal contact and authorised recipient.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

14. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Computer Network and Systems Engineer approved, with the applicant as nominee, on 15 September 2017. The nomination application was refused on 20 February 2018 and the nominator sought review of that decision with the Tribunal on 5 March 2018.

16. On 8 October 2020, the Tribunal affirmed the decision not to grant the nomination application.

17. On 9 October 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 8 October 2020, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Willskey Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that Mr Weiwei Nong does not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mrs Wanxia Chen and Miss Jinyu Nong do not meet the secondary visa criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 October 2020.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 22 October 2020, the applicants requested an extension of time to respond to the Tribunal’s invitation. On 23 October 2020, the Tribunal allowed an extension of time until 30 October 2020 to comment on or respond to the information set out in the invitation of 9 October 2020. On 30 October 2020, the applicants wrote to the Tribunal stating that they were really frustrated with the result and had no further comment. No further response to the Tribunal’s invitation has been received.

19. Although the applicants have not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 21 February 2018 of the reasons for the visa application being refused. The Tribunal has also taken into account that the applicant was advised at the hearing on 12 August 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

20. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.186.223 and cl.186.311 of Schedule 2 to the Regulations.

21. As mentioned in paragraph 5 above, the Tribunal notes that the delegate stated in the decision that the nomination had been refused on 20 January 2018, whereas the nomination was actually refused on 20 February 2018. The records of the Department show that a notification of the refusal of the nomination was forwarded to the applicant on 20 February 2018 and that he was invited to comment on the information contained in the notification within 28 days after he was taken to have received it. The notification further stated that, as the notification was being sent to the applicant by email, he was taken to have received it at the end of the day it was transmitted.

22. The decision to refuse the visa application was made on 21 February 2018, so that the 28-day period referred to in the notification of 20 February 2018 had clearly not elapsed. On 28 February 2018, the migration agent then representing the applicants submitted that, in the circumstances, procedural fairness had not been afforded to the applicants and requested that the decision to refuse the visas be reversed. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 7 March 2018. On 15 March 2018, the Department advised the representative that, as the applicants had sought merits review of the decision, the Tribunal process should be allowed to run its course.

23. Although it may have been unfortunate that the delegate’s decision was made before the time allowed for response to the notification of 20 February 2018 had elapsed, the Tribunal has conducted a merits review of the decision and has considered all the relevant evidence. It can be said that the Tribunal has stood in the shoes of the primary decision-maker (MIMIA v VSAF of 2003 [2005] FCAFC 73).

24. The Tribunal notes that the application for nomination for the position of Computer Network and Systems Engineer has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

25. Therefore, cl.186.223 is not met in respect of the applicant.

26. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

27. In relation to the second named and third named applicants, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl.186.311. The Tribunal finds accordingly.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    186.223(1)    The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)    The Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)    The position is still available to the applicant.

    (5)    The application for the visa is made no more than 6 months after the Minister approved the nomination.